Court ruling spurs fresh Spa City charter ballot request

Absentee ballots are reviewed and counted at the Saratoga County Board of Elections in December.

Photographer: Erica Miller

SARATOGA SPRINGS — An April 12 court ruling in Essex County has prompted former Saratoga Springs Charter Review Commission members to submit a third request for ballots from November's charter reform referendum.

Since January, former Charter Review Commission members Bob Turner and Gordon Boyd have been following the case of Kosmider vs. Whitney in the Appellate Division of state Supreme Court, which questioned whether copies of electronic voting ballot images are public records.

Supreme Court Justice Stanley Pritzker ruled that, "Once electronic ballot images have been preserved in accordance with the procedures set forth in Election Law ... there is no statutory impediment to disclosure, and they may be obtained through a FOIL request."

Turner said the April 12 ruling "completely changes the legal landscape for our FOIL request."

The city's charter referendum sought to shift the current mayor-and-commissioners governmental system to a government overseen by an appointed city manager.

On Nov. 7, the charter vote came down to around 50 votes, with 4,202 votes cast in favor of changing the city's government and 4,154 voting against.

Turner, Boyd and former commission member Pat Kane submitted a petition for a ballot recount the following week, claiming "several of the voting machines in [Saratoga Springs] may have malfunctioned or broken down and failed to count all of the votes cast for the proposed new city charter."

Turner said the Kosmider vs. Whitney ruling means ballots are public information.

"The case establishes that ballots are FOIL-able and should be applied as liberally and expansively as possible," he said. "We're very hopeful that the Republican and Democratic commissioners at the Saratoga County Board of Elections will decide to follow the court ruling."

Boyd said he wasn't surprised by the ruling.

"This case puts us into view of people all over the state who are interested in transparency in the election process," he said. "It's a question of transparency and accountability, which are always important in a democracy."

Robert Freeman, executive director of the New York State Committee on Open Government, gave an advisory opinion about the issue before the Kosmider vs. Whitney case went to court.

"My opinion is the same as the ruling, so I agree," he said on Wednesday. "The issue involves the interpretation of elements of the election law, and the state Legislature recognizes advances in technology and wrote a provision that accommodated technology that preserves the integrity of the ballot."

Freeman said he anticipates more people will file FOIL requests to view ballots after elections.

"If there's no exception to the law, they should be disclosed," he said. "I hope the Saratoga County Board of Elections will have respect for the Appellate Court that serves the county."

The Saratoga County Board of Elections has 30 days to respond to Turner's April 23 FOIL request.

"Our last two FOIL requests we were notified in the afternoon on the 30th day," he said. "It's in the best interest of the voters and the city to settle this ASAP."

Turner said that, if the request is granted, he and Boyd would count the ballots to see if they match the absentee ballot results.

If the numbers are off, Turner said he would bring it to Judge Nolan's attention to order a recount by the Board of Elections.

Turner added that the Saratoga County Board of Elections would likely have to pay Boyd and Turner's attorney's fees, as Gov. Andrew Cuomo signed a bill in December requiring state agencies to pay attorney fees if a court has no reasonable basis to deny a FOIL request.

"With this legal ruling, the county has no leg to stand on," Turner said.